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2. Suit No. 383 of 1982 was filed in this Court by the plaintiffs against the 6 defendants. In the plaint, it was claimed that plaintiffs Nos. 2 to 6 are the heirs and legal representatives of late Panju and late Wali Muhammad, who, alongwith other co-sharers, were the owners of the agricultural lands in suit. According to the averments made in para. 1 of the plaint, both Panju and Wali Muhammad had 3 Pies share each in the said lands. In para. 2 of the plaint it is averred that plaintiff' No. 1 is the legal representative of nearly all the heirs and legal representatives of other co-sharers who have agreed to sell all their shares to plaintiff No. 1 and have also executed powers of attorney in his favour. In para. 3 of the plaint it is mentioned that, in 1952, defendants Nos. 1 and 2 contracted to purchase from Allah Bux and legal heirs of other co-sharers 5 Survey numbers namely 300, 301, 302, 303 and 304 in Deh Mebran with a total area of 29 Acres 18 Ghuntas through Agreement of Sale dated 14-2-1952. The case set up in the plaint is that some of the co-sharers signed or put their thumb-marks on the Agreement without any knowledge of the nature of the transaction and that thumb-impressions appear to have been mani pulated and/or forged by the defendants Nos. 1 and 2. The plaintiffs have challenged the said Agreement of Sale of 1952 and have also taken up the plea that in any case at the time the Agreement of Sale was made in 1952 there were restrictions on the transfer/sale of agricultural lands in the area in which the aforesaid lands are situated under the Sind Rural Credit and Land Transfer Act, 1947 and Land Control (Capital of the Federation) Ordinance No. 26/48.

It may be observed here that although in the plaint relief has been claimed in respect of various survey numbers in Deh Mehran, Tappo Malir, Taluka Karachi, it was submitted by Mr. Abbas Zia, learned counsel for the appellants, that the dispute between the parties is restricted only to two sets of survey numbers, namely, Survey Nos. 300 to 304 and Survey Nos. 305 to 311 and no relief is being claimed in respect of other survey numbers.

The lands in question stood transferred to defendants Nos. 1, 2 and 3 and later on defendants Nos. 4 and 5 purchased the lands and the said lands now stand in the Record-of-Rights in the name of defendants Nos. 4 and 5. Defendant No. 6 is Mukhtiarkar, East, District Karachi.

In the suit, the plaintiffs have claimed the following reliefs :-

"(a) For a decree for possession against defendants by ejecting them, their agents and men, representatives, employees and servants or holding through them alongwith a decree for Rs. 61,91,815 as calculated in para. 29 of the plaint.

(b) In the alternative for a decree of Rs. 2,13,807 as balance amount of consideration and Rs. 61,91,815 as mesne profit/damages totaling Rs. 64,05,622.

(c) For a decree of permanent injunction restraining defendants from transferring possession or title to anyone else except the plaintiffs.

(d) For a decree of declaration against defendant No. 6 declaring all entries made in the record of rights from 1952 upto date as against the plaintiffs and 111 co-sharers respecting plots Nos. 290, 291, 292, 293, 296, 297, 298, 300, 301, 302, 303, 304, 305, 306, 307, 308, 309, 310, 311, 312, 313, 314, 315 and 316, Deh Mehran, Tappo Malir, Taluka Karachi are null and void and of no effect.

(e) For a decree of injunction restraining defendant No. 6 from effecting any entry for mutation in the record of rights without consent and approval of the co-sharers and the plaintiffs.

(f ) For costs of the suit.

(g) Any other relief be granted that may be found in favour of the plaintiff in the circumstances of the case."

3. In the suit, applications were also made for grant of temporary injunction. As observed earlier, by the impugned order dated 18-8-1983 of the learned Single Judge, the temporary injunction applications have been dismissed. The learned Single Judge was of the view that no prima facie case had been made out by the plaintiffs and that the appellants had failed to show that they would suffer any irreparable loss if injunction was not granted. Learned Single Judge further added that it had not been shown that the balance of convenience was in favour of the plaintiffs. Paras. 9, 10 and 11 of the impugned order dated 18-8-1983 of the learned Single Judge may be reproduced here :--

"(9) I will first deal with Survey Nos. 305 to 311. It will be noted that in the narration of facts in the plaint no averment whatever has been made by the plaintiffs claiming any right, title or interest in these survey numbers. They have, however, in the prayer clause added these Survey numbers (305 to 311) as well, while claiming declaration in respect of the various pieces of land, otherwise the plaintiffs have neither shown any title or interest nor have made any averment so as to claim any title or interest in these Survey numbers (305 to 311). Accordingly their application claiming any injunction in respect of these survey numbers is liable to be rejected on this short ground alone.

(10) As regards the Survey Nos. 300 to 304 it will be seen that the plaintiffs have admitted in the plaint that they as well as other legal heirs of the original owners of these 5 survey numbers, have either agreed to sell or sold away their rights therein to the other party. The plaintiffs obviously cannot plead case of the other co- sharers who according to the plaintiffs had signed the agreements. It is obvious that as the sellers, other than the plaintiffs, have not chosen to join the suit as plaintiffs and have not even been cited as defendants, cannot be treated as having any grievance. In the circumstances the only case which requires consideration is that of plaintiffs and not of all the other heirs of the original owners who have not joined and are not parties to the suit.

As to the alleged right/title of the plaintiffs I find from the documents produced that the defendants Nos. 3 and 4 (and defendant No. 5) have prima facie validity acquired title in the above survey numbers. The defendants have produced 15 documents which fully support the case of the defendants (the defendant No. 5 is a company whose interest is common with defendants Nos. 3 and 4) that these Survey Nos. 305 to 311 have validly been transferred in their favour.

11. The learned counsel for the plaintiffs were unable to show that the transactions whereby these Survey Nos. 300 to 304 and/or Survey Nos. 305 to 311 stand transferred to the defendants Nos. 3 to 5 and/ or to the defendant No. 5, in any manner suffer from any illegality, rendering them inoperative."

4. Mr. Abbas Zia, learned counsel for the appellants could not at this stage controvert the documentary state of affairs reflected in the aforesaid paragraphs of the impugned order of the learned Single Judge. It may further be added that no relief has been sought in the suit for cancellation of the Agreement of Sale of 1952 in favour of defendants Nos. 1 and 2 and similarly there is no prayer for cancellation of various convey ance deeds and other agreements registered/executed in favour of the private defendants. Then admittedly for over 30 years, on the lands in question constructions have been raised by various persons and electricity and gas facilities have been extended to such constructions but no objection was raised by the plaintiffs for over 30 years before filing the present suit in 1982.

5. However, the main contention of the learned counsel for the appellants was that the lands could not be transferred in 1952 on account of the restrictions placed on the transfer of the said lands by the two enactments referred earlier in this order. Learned counsel referred to sections 3, 5 and 7 of the Sind Rural Credit and Lands Transfer Act, 1947, according to which no permanent alienation of the holding of a land-holder could be made at the relevant time if holding of the land-holder did not exceed the minimum area but such alienation would be made with the sanction of the Collector. According to the learned counsel for the appellants, for the Agreement of 1952 no sanction of the Collector had been obtained at any time and as such the Agreement and thereafter the conveyance deeds and other agreements in favour of the defendants are void and illegal.

Reliance was also placed on the Land Control (Capital of the Federation) Ordinance, 1948. According to section 9 of the 1948 Ordinance no person could transfer any land lying in the specified areas except with the prior permission of the Central Government in writing and any transfer in contravention of the said section wad void. The areas were specified in the Schedule to the Ordinance. According to the learned counsel for the appellants, the lands in question fell within the areas specified in the Schedule.

6. Mr. S. H. Rizvi, learned counsel appearing for the respondents Nos. 4 and 5 submitted that, according to the plaintiffs themselves, plaintiffs Nos. 2 to 6 were holders of only 3 pies share each in the lands and according to the entries in the Record-of-Rights, heirs of Panju had sold their shares in the lands in 1952 to defendant No. 1, and heirs of Wali Muhammad had sold their shares in the land to one Allah Bux in 1927. According to the learned counsel it had not been shown as to what was the status of the appellant No. 1 inasmuch as no document had been filed to show his locus standi to file the suit.

As regards the submission made on behalf of the appellants about the legal restrictions on the transfer of lands, it was submitted by Mr. S. H. Rizvi, learned counsel for defendants Nos. 4 and 5 that the Sind Rural Credit and Land Transfer Act, 1947 came into effect in August 1947 and it placed certain restrictions on the transfer of agricultural lands in the Province of Sind but by The Pakistan (Establishment of the Federal Capital) Order, 1948, Karachi was separated from the Province of Sind and the areas included in Karachi in accordance with Article 3 of the said Order of 1948, ceased to form part of the Province of Sind from the date appointed. By Notification No. I/1/48-KAR, the Central Government, pursuant to paragraph 1 of Article 3 of The Pakistan (Estab lishment of the Federal Capital) Order, 1948, appointed the 23rd day of July,-1948, as the date, from which the areas specified in Part I of the Schedule to the said Order stood demarcated from Sind and formed into an administrative unit to be called Karachi. Item No. 40 in the List of Dehs given in Part 1 of the Schedule to the said Order 1948 is Deh Mehran, in which the lands in suit are situated. Learned counsel then referred to another enactment, namely, The Land Control (Capital of the Federation) Ordinance XXVI of 1948, on which reliance had been placed by Mr. S. Abbas Zia, learned counsel for the appellants. Section 3 of this Ordinance is as follows ;--

"(3) Central Government to approve land transfers.-No person shall transfer any land lying within the specified area except with the prior approval of the Central Government in writing and any transfer made in contravention of this section shall be void."

Specified area is defined in section 2 of the said Ordinance to mean any area specified in the Schedule to the Ordinance. Schedule to the Ordinance refers to certain boundaries. According to Mr. S. H. Rizvi, Deh Mehran was outside the specified area and it was not necessary to obtain any approval of the Central Government before transfer of the lands in question.

7. After perusal of the provisions of the three enactments cited before us, we are of the view that prima facie the contention of Mr. S. H. Rizvi is correct. No doubt The Sind Rural Credit and Land Transfer Act, 1947 placed certain restrictions on transfer of agricultural lands but such restrictions were applicable to agricultural lands in the Province of Sind. When the said Act came into force, Karachi was a part of Province of Sind. But, by The Pakistan (Establishment of the Federal Capital) Order, 1948, Karachi was separated from the Province of Sind and with effect from the appointed date, Karachi ceased to form part of Province A of Sind and the appointed date was 23-7-1948 as per the Notification issued by the Central Government under Article 3 of the Order, 1948. In 1952, when the Agreement of Sale was executed, Karachi was not apart of Province of Sind and as The Sind Rural Credit and Land Transfer Act, 1947, was applicable to agricultural lands in the Province of Sind, apparently the restrictions imposed by the Act, 1947, did not apply to the lands in suit located in Deh Mehran, which, are specifically mentioned in Part I of the Schedule to The Pakistan (Establishment of the Federal Capital) Order, 1948.